Federal courts continue to operate during government shutdown

Although many government agencies are not operating during the government shutdown, such as the International Trade Commission (see our blog post on the effect of the government shutdown on Section 337 investigations), federal courts continue to operate using reserve funds, often deeming all employees of the court essential. Some details regarding the operation of courts during the shutdown remain unclear, including when and how courts will pay their staff in the event that reserve funds run out; however, the following is a brief discussion of what some courts are doing during the shutdown. The discussion focuses on key intellectual property forums:

• The Supreme Court provided the following notice on its website: "The Court will continue to conduct its normal operations through Friday, October 18. The Court building will be open to the public during its usual hours, and the Court will hear the scheduled oral arguments. A further update will be provided in the event the lapse of appropriations continues beyond October 18."
• The Federal Circuit issued an order on October 3, 2013, regarding the shutdown, stating that during any prolonged government closure, the court will remain open with essential staff to transact all business necessary to the progress and resolution of cases. The order further explains that cases will not be stayed in the absence of a motion, and that oral arguments will proceed as scheduled.
• The District of New Jersey posted the Third Circuit’s press release regarding the shutdown. In the Third Circuit's release, the circuit stated that all functions, with few limited exceptions such as training and travel, are essential to the administration of justice by the federal courts within the circuit, and expressed gratitude for the judges and staff, who must work without timely payment of their salaries.
• The District of Delaware also referred to the Third Circuit's release, and issued a standing order, deeming all employees of the district court an essential part of the support for the exercise of judicial powers. The District of Delaware also provided a link to the Third Circuit's press release regarding the government shutdown.
• The Eastern District of Texas, also, deemed all employees of the court to be essential in an October 7, 2013 order, ordering that all non-case-related travel cease, but that all employees should report to work unless otherwise instructed. The court, however, stayed all cases in which the United States is a party, in an October 9, 2013 order.
• The Eastern District of Virginia posted a short notice on its website, providing: "In the event of a government shutdown on October 1, 2013, the United States District Court for the Eastern District of Virginia will remain open for at least twelve (12) business days, through October 17, with all court proceedings to go forward as scheduled." It is unclear what will happen if the shutdown lasts beyond October 17.
• The Southern District of New York posted a simple notice on its website stating: "SDNY WILL REMAIN OPEN FOR BUSINESS AS USUAL DURING THE GOVERNMENT SHUTDOWN."
• The Northern District of California posted an announcement on its website stating that it will remain open and operational for the duration of the government shutdown, though certain administrative non-case-related functions may be affected. An October 10, 2013 order states that all activities necessary to support the exercise of Article III judicial power, i.e., the resolution of cases in which there is a constitutional or statutory grant of jurisdiction, are deemed essential.